Citation Nr: 1420431
Decision Date: 05/07/14 Archive Date: 05/21/14
DOCKET NO. 10-16 807 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to a higher initial rating for PTSD, rated as 30 percent disabling prior to August 24, 2012 and 70 percent disabling thereafter.
2. Entitlement to an initial rating in excess of 40 percent for diabetes mellitus, type II, with peripheral arterial disease of the bilateral lower extremities.
3. Entitlement to service connection for sarcoidosis, to include as due to herbicide exposure.
4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus.
5. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus.
6. Entitlement to service connection for a skin condition of the bilateral feet.
7. Entitlement to an effective date earlier than April 15, 2008 for the award of service connection for diabetes mellitus, type II.
8. Entitlement to an effective date earlier than April 27, 2010 for the award of service connection for coronary artery disease (CAD).
9. Entitlement to an effective date earlier than April 27, 2010 for the award of service connection for PTSD.
ATTORNEY FOR THE BOARD
M. Riley, Counsel
INTRODUCTION
The Veteran served on active duty from June 1970 to March 1972 with service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, and a November 2010 rating decision issued by the RO in Roanoke, Virginia. Jurisdiction over the claims file is currently held by the RO in Roanoke.
In July 2011 and November 2011 substantive appeals, the Veteran requested to appear at a videoconference hearing before the Board. A hearing was scheduled for October 11, 2013 and the Veteran was notified in a September 2013 letter. The Veteran cancelled the hearing in October 2013 and has not requested that the hearing be rescheduled. The Board therefore finds that the Veteran has withdrawn his request for a videoconference hearing and will proceed accordingly.
The Veteran appointed an agent as his representative before VA in April 2010. In July 2013, the agent withdrew his representation of the Veteran due to the agent's retirement. The Veteran confirmed the agent's withdrawal in a July 2013 statement and has not appointed another representative. Therefore, he is currently not represented.
FINDINGS OF FACT
1. Prior to August 24, 2012, the Veteran's PTSD most nearly approximated occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.
2. Beginning August 24, 2012, the Veteran's PTSD most nearly approximates deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment.
3. The Veteran's diabetes mellitus most nearly approximates treatment with oral and injected insulin, restricted diet, and regulation of activities without episodes of ketoacidosis or hypoglycemic reactions.
4. The Veteran's peripheral arterial disease associated with diabetes mellitus manifests complaints of claudication and coldness with normal physical examinations and a normal bilateral ankle/brachial index of 1.38.
5. The Veteran's sarcoidosis is etiologically related to active duty service and exposure to herbicides.
6. The claim for entitlement to service connection for hypertension was initially denied in an unappealed October 2008 rating decision.
7. The evidence received since the October 2008 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim.
8. The Veteran's hypertension is aggravated by service-connected diabetes mellitus.
9. The Veteran does not have a chronic skin disability of the bilateral feet, to include tinea pedis.
10. The currently-assigned effective date of April 15, 2008 for the award of service connection for diabetes mellitus is the later of the date entitlement to the benefit was shown or the date a valid claim for service connection was received.
11. The currently-assigned effective date of April 27, 2010 for the award of service connection for CAD is the later of the date entitlement to the benefit was shown or the date a valid claim for service connection was received.
12. The currently-assigned effective date of April 27, 2010 for the award of service connection for PTSD is the later of the date entitlement to the benefit was shown or the date a valid claim for service connection was received.
CONCLUSIONS OF LAW
1. The criteria for a higher initial rating for PTSD, rated as 30 percent disabling prior to August 24, 2012 and 70 percent disabling thereafter, are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2013).
2. The criteria for an initial rating in excess of 40 percent for diabetes mellitus, type II, with peripheral arterial disease of the bilateral lower extremities are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.7, 4.104, 4.119, Diagnostic Codes 7114, 7913.
3. Service connection for sarcoidosis is warranted. 38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309.
4. New and material evidence has been received to reopen service connection for hypertension. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
5. Service connection for hypertension as secondary to service-connected diabetes mellitus is warranted. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310.
6. A chronic skin disability of the bilateral feet, to include tinea pedis, was not incurred or aggravated by active duty service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
7. The criteria for an effective date earlier than April 15, 2008 for the award of service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.303, 3.307, 3.309, 3.400.
8. The criteria for an effective date earlier than April 27, 2010 for the award of service connection for CAD are not met. 38 U.S.C.A. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.303, 3.307, 3.309, 3.400.
9. The criteria for an effective date earlier than April 27, 2010 for the award of service connection for PTSD are not met. 38 U.S.C.A. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.303, 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Increased Rating Claims
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
PTSD
Service connection for PTSD was granted in the November 2010 rating decision on appeal. An initial 30 percent evaluation was assigned effective April 27, 2010. In a July 2013 rating decision, an increased 70 percent evaluation was assigned effective August 24, 2012. The Veteran's PTSD is therefore rated as 30 percent disabling prior to August 24, 2012 and 70 percent disabling thereafter. He contends that increased ratings are warranted as the disability is productive of occupational and social impairment that is more severe than contemplated by the current disability ratings.
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a).
VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
The Veteran's PTSD is currently evaluated as 30 percent disabling and 70 percent disabling under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent rating is warranted when the mental disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id.
A maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.
After consideration of all the evidence of record, the Board finds that the Veteran's PTSD most nearly approximates the criteria associated with the currently assigned 30 percent initial rating during the period prior to August 24, 2012. With respect to the schedular criteria, the Veteran has manifested symptoms specifically contemplated by a 30 percent evaluation. Upon VA contract examination in October 2010, he manifested a depressed mood, moderate sleep impairment (with night sweats, difficulty sleeping, and nightmares), mild anxiety, panic attacks less than once a week, and mild memory impairment. He did not demonstrate any of the criteria associated with an increased rating except for a general finding by the VA examiner of "disturbances of motivation and mood." The Veteran did not manifest impairment to speech, long-term memory, judgment, thinking, or difficulty understanding complex commands. There was also no homicidal or suicidal ideation or evidence of hallucinations or delusions.
The October 2010 VA contract examiner's other findings are also consistent with the current 30 percent rating. The examiner assigned a Global Assessment of Functioning (GAF) score of 58, associated with moderate symptoms and only moderate difficulty in occupational and social functioning. See The Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2013). Together with the examiner's observances regarding the Veteran's symptoms, the assigned GAF score is consistent with the current 30 percent evaluation for PTSD.
The contract examiner also concluded that the Veteran's PTSD most nearly approximated occupational and social impairment with only an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning well). This finding is specifically contemplated by the current 30 percent rating. Prior to August 24, 2012, the Veteran was employed as an investigator with the United States Office of Personal Management (OPM) and while he had some trouble motivating himself to go to work, he did not lose any time from his job due to PTSD. He also maintained very good relationships with his supervisor and co-workers. Regarding social impairment, the Veteran reported that his social contact had diminished in recent years and he only socialized with a small circle of family and friends; however, he remained close to his siblings, wife, and children. It is therefore clear that the Veteran's occupational and social impairment did not most nearly approximate the criteria associated with a higher rating during this period as he did not manifest reduced reliability and productivity or have difficulty establishing and maintaining effective work and social relationships. Thus, a rating in excess of 30 percent is not warranted for PTSD during the period prior to August 24, 2012.
Turning to the period beginning August 24, 2012, the Veteran's PTSD is currently rated as 70 percent disabling. During this period, the Veteran's disability has not manifested any of the symptoms specifically contemplated by a total (100%) disability evaluation under the general rating formula. Upon VA contract examination in September 2012, the Veteran did not manifest any impairment in thought processes or communication, delusions or hallucinations, inappropriate behavior, an inability to perform activities of daily living, or memory loss to the severity contemplated by a total rating. The examiner noted some impairment to impulse control, but there was no danger of the Veteran hurting himself or others and no suicidal ideation.
Although the Veteran has not manifested any of the other specific symptoms associated with a 100 percent evaluation or others of similar severity, frequency, and duration, a total rating is warranted if his service-connected PTSD causes total occupational and social impairment, regardless of whether he has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). After review of the medical and lay evidence, the Board finds that the Veteran has not manifested total occupational and social impairment and a 100 percent evaluation is therefore not appropriate.
The evidence establishes some occupational and social impairment stemming from the Veteran's PTSD, but does not demonstrate that such impairment is total. The Veteran continued to work as an OPM investigator throughout the claims period and while his wife passed away in May 2012, there was no indication of worsening relationships with his family members. The September 2012 VA examiner specifically noted the presence of occupational and social impairment that most nearly approximated reduced reliability and productivity. The assigned GAF score of 51-60 is also consistent with moderate symptoms and moderate occupational and social impairment. It is therefore clear that the Veteran has not demonstrated total impairment at any time during the period beginning August 24, 2012.
The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.
Diabetes Mellitus
Service connection for diabetes mellitus, type II, associated with herbicide exposure was granted in the October 2008 rating decision on appeal with an initial 20 percent evaluation assigned effective April 15, 2008. An increased 40 percent evaluation was assigned in a November 2010 rating decision, also effective April 15, 2008. The November 2010 rating decision recharacterized the Veteran's diabetes to include service connection for peripheral arterial disease of the bilateral lower extremities. The Veteran is also in receipt of service connection and separate disability evaluations for diabetic peripheral neuropathy of the bilateral upper and lower extremities; however, this decision is limited to consideration of the appropriate rating for diabetes mellitus with peripheral arterial disease.
The Veteran's disability is rated under Diagnostic Code 7913 pertaining to diabetes mellitus. This diagnostic code provides that when diabetes mellitus requires insulin, restricted diet, and regulation of activities, it is evaluated as 40 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated 100 percent disabling. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, Diagnostic Code 7913.
After review of the evidence, the Board finds that the Veteran's diabetes mellitus most nearly approximates the currently assigned 40 percent disability evaluation and an initial increased rating is not warranted. In June 2008, a VA contract examiner found that the Veteran's diabetes was treated with insulin, a restricted diet, and regulation of activities. The Veteran also reported in September 2009 that he required daily shots of insulin to control his diabetes. These manifestations are all contemplated by the currently assigned 40 percent evaluation. The Veteran also denied experiencing any episodes of diabetic ketoacidosis or hypoglycemic reactions during VA contract examinations in June 2008 and October 2011 and private treatment records do not document any hospitalizations or visits to his diabetic healthcare provider for treatment of high or low blood sugar levels. It is therefore clear that the Veteran's diabetes mellitus does not require treatment that most nearly approximates an increased rating.
The Veteran's service-connected diabetes also includes peripheral arterial disease of the bilateral lower extremities. The Board must determine whether the Veteran's arterial disease is a compensable complication of diabetes as noncompensable evaluations are part of the criteria for a 60 percent evaluation under Diagnostic Code 7913. Peripheral vascular disease is rated by analogy under Diagnostic Code 7114 pertaining to arteriosclerosis obliterans. Under this diagnostic code, a 20 percent evaluation is warranted for claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of .9 or less. A 40 percent evaluation is assigned for claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour; and, trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. Note (1) following the rating criteria provides that the ankle/brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Note (3) provides that these evaluations are for involvement of a single extremity. If more than one extremity is affected, evaluate each extremity separately and combine using the bilateral factor is applicable. 38 C.F.R. § 4.104, Diagnostic Code 7114.
The evidence establishes that the Veteran's peripheral arterial disease does not most nearly approximate a compensable evaluation under Diagnostic Code 7114. Although the Veteran reported experiencing claudication in the lower extremities after walking 100 yards at the June 2008 VA contract examination, physical examination of the lower extremities was completely normal. Three years later, during the October 2011 VA contract examination, the Veteran stated he was able to walk 400 yards before experiencing leg cramping and pain, and denied any persistent coldness in the lower extremities. The Veteran also demonstrated a normal bilateral ankle/brachial index of 1.38. The evidence establishes the presence of bilateral peripheral arterial disease of the legs, but the Board cannot conclude that it most nearly approximates a compensable rating under Diagnostic Code 7114. Additionally, while noncompensable diabetic complications are included in the criteria for a 60 percent evaluation under Diagnostic Code 7913, the record is wholly negative for any episodes of ketoacidosis or hypoglycemia as required for an increased rating of 60 percent.
Thus, the Veteran's diabetes mellitus with peripheral vascular disease of the lower extremities most nearly approximates the current 40 percent rating under Diagnostic Code 7913. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.
Other Considerations
In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's PTSD is manifested by symptoms such as a depressed mood, sleep impairment, anxiety, and impairment to occupational and social functioning. His diabetes mellitus manifests increased blood sugar levels requiring treatment with insulin and a restricted diet and activities and peripheral arterial disease of the legs. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted.
Entitlement to a TDIU is also an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU was most recently adjudicated and denied by the RO in February 2012. Since that time, the Veteran has not alleged that he is unable to work due to service-connected PTSD and/or diabetes and he has remained employed as an investigator with OPM performing background checks. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected PTSD or diabetes.
Service Connection Sarcoidosis
The Veteran contends that service connection is warranted for sarcoidosis as it was incurred due to herbicide exposure during his active duty service in the Republic of Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).
The evidence establishes a current disability; the Veteran's private treatment records document a history of sarcoidosis since 1978 and biopsies of skin granulomas and pulmonary function tests (PFTs) confirm the presence of symptoms associated with the disease. In addition, the service department and personnel records verify he served in Vietnam. His exposure to herbicides is therefore presumed. 38 C.F.R. §§ 3.307, 3.309.
Although sarcoidosis is not a disease subject to presumptive service connection under 38 C.F.R. § 3.309(e) based on exposure to herbicides, service connection is still possible with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the Board finds that the record establishes a nexus between the Veteran's sarcoidosis and in-service herbicide exposure. In April 2014, a VA medical expert provided an opinion in support of the Veteran's claim and the record contains competent and credible statements from the Veteran and his wife (a registered nurse) dating the onset of sarcoidosis to a few years after his return from active duty. As all the elements necessary for service connection are met, the claim for entitlement to service connection for sarcoidosis is granted.
Claim to Reopen
The claim for entitlement to service connection for hypertension was initially denied in unappealed October 2008 rating decision as it was not incurred or aggravated by active duty service. The Veteran did not appeal the denial of the claim and the October 2008 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.110.
The evidence received since the October 2008 rating decision includes the Veteran's contentions that hypertension was incurred secondary to service-connected diabetes mellitus. This evidence is new as it was not previously of record and is material as it relates to an unestablished fact, i.e. a link between hypertension and diabetes, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Reopening of the claim for entitlement to service connection is therefore warranted.
Reopened and Other Service Connection Claims
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007).
Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).
Hypertension
The Board finds that service connection is warranted for hypertension as secondary to service-connected diabetes mellitus. The record clearly establishes the presence of a current disability; the Veteran has received consistent private treatment for hypertension throughout the claims period and the condition was diagnosed upon VA contract examinations in June 2008, June 2010, and October 2011. The evidence is also in equipoise regarding whether the Veteran's hypertension is aggravated by service-connected diabetes mellitus. The June 2008 VA contract examiner provided a medical opinion in favor of aggravation while the October 2011 VA contract examiner found that the Veteran did not have any non-diabetic condition aggravated by diabetes. As the record contains one medical opinion in support of the claim and one opinion weighing against it, the Board will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection is granted for hypertension as secondary to service-connected diabetes mellitus in accordance with 38 C.F.R. § 3.310 (2013).
Skin Condition of the Bilateral Feet
After review of the evidence, the Board finds that the Veteran does not have a current skin disability of the feet.
Service records document a finding of mild tinea pedis in October 1971. The Veteran was prescribed various topical treatments and no abnormalities of the feet were noted on the March 1972 separation examination report. The in-service finding of tinea pedis, dated years before receipt of the Veteran's April 2010 claim for service connection, cannot serve to establish the presence of a current disability as the claimed condition must be shown at some point during the claims period. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (a finding that the veteran had a claimed disability "at some point during the processing of his claim," satisfied the service connection requirement for manifestation of current disability).
There is also no competent post-service medical evidence establishing a current skin condition of the bilateral feet. Private treatment records, including those from the Veteran's dermatologist, are negative for findings of a skin disability of the feet. Dermatological examination of the Veteran's extremities was also normal upon VA contract examinations in June 2008 and October 2011.
The Veteran contends that service connection is warranted for a current skin condition of the feet. Lay statements are competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran is competent to report the presence of skin problems on his feet; however, the Board also finds that his lay statements are outweighed by the objective medical evidence of record. Treatment records are entirely negative for complaints or treatment for the claimed condition and the Veteran has not provided any specific statements in support of his claim describing the type of symptoms he experiences. As the Veteran has never described any manifestations of the claimed disability, the Board finds that the medical evidence, including the consistently normal dermatological examinations of the lower extremities, outweighs the Veteran's vague lay statements.
Thus, the weight of the evidence is against a finding of any current disability due to service. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for a skin condition of the bilateral feet.
Earlier Effective Date Claims
Service connection for diabetes mellitus, type II, associated with herbicide exposure was granted in the October 2008 rating decision on appeal effective April 15, 2008. Service connection for PTSD and CAD associated with herbicide exposure was granted in the November 2010 rating decision on appeal, both effective April 27, 2010. The Veteran contends that the award of service connection for diabetes should be effective from date the condition was first diagnosed in July 1998. He has not provided any specific argument regarding the claims for earlier effective dates for CAD and PTSD, but the Board will infer similar contentions that the appropriate effective date for service connection for these disabilities is the date of their onset.
Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2013). The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i).
The Veteran's claim for entitlement to service connection for diabetes was received by VA on April 15, 2008. The claims for entitlement to service connection for CAD and PTSD were received on April 27, 2010. The current effective dates for the awards of service connection for these disabilities are based on the date of receipt of the claims. Review of the claims file does not establish any earlier communications from the Veteran indicating an intent to claim service-connected compensation benefits for diabetes, CAD, or PTSD. See 38 C.F.R. § 3.155; Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).
Although the record contains some evidence indicating that the Veteran was diagnosed with diabetes, CAD, and PTSD before receipt of his claims for service connection in April 2008 and April 2010, 38 C.F.R. § 3.400(b)(2)(i) is clear that the effective date for an award of service connection is the later of the date entitlement arose or the date the claim was received. Nelson v. Principi, 18 Vet. App. 407 (2004); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of award for service connection is not based on the date of earliest medical evidence demonstrating a causal connection, but on the date that the application on which service connection was eventually awarded was filed with VA"). Thus, effective dates earlier than those currently assigned for the grant of service connection for diabetes mellitus, CAD, and PTSD are not possible.
The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Pursuant to that authority, the Board finds that there is no legal basis by which effective dates earlier than April 15, 2008 and April 27, 2010 for the awards of service connection for diabetes mellitus, CAD, and PTSD may be assigned and the claims must be denied.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).
VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
VA has substantially satisfied the duties to notify and assist with respect to the claims to grant service connection for sarcoidosis and reopen and award service connection for hypertension. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to reopen and grant the claims.
Regarding the claims for service connection for a skin disability of the bilateral feet, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in June 2008 and June 2010 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the June 2008 and June 2010 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
With respect to the claims for increased initial ratings and earlier effective dates for diabetes, CAD, and PTSD, the Veteran initiated these appeals following awards of service connection. The claims for service connection for the disabilities on appeal are now substantiated and the filing of a notice of disagreement (NOD) as to the October 2008 and November 2010 rating decisions does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeals as to the initial rating and effective date assignments triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.
Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The March 2010, June 2011, and October 2011 SOCs, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. The SOCs also set forth the criteria for assigning effective dates for the award of service connection. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating and earlier effective date for the service-connected disabilities at issue.
VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the Veteran, including service treatment records and private medical records. He has not reported receiving any VA treatment of the disabilities on appeal. Additionally, the Veteran was provided proper VA examinations in June 2008, October 2010, and September 2012.
For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.
ORDER
Entitlement to a higher initial rating for PTSD, rated as 30 percent disabling prior to August 24, 2012 and 70 percent disabling thereafter is denied.
Entitlement to an initial rating in excess of 40 percent for diabetes mellitus, type II, with peripheral arterial disease of the bilateral lower extremities is denied.
Entitlement to service connection for sarcoidosis is granted.
New and material evidence having been received, reopening of the claim for entitlement to service connection for hypertension is granted.
Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus is granted.
Entitlement to service connection for a skin condition of the bilateral feet is denied.
Entitlement to an effective date earlier than April 15, 2008 for the award of service connection for diabetes mellitus, type II, is denied.
Entitlement to an effective date earlier than April 27, 2010 for the award of service connection for CAD is denied.
Entitlement to an effective date earlier than April 27, 2010 for the award of service connection for PTSD is denied.
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs